Dr.
(Mrs.) Vimal Vs. Bhaguji & Ors [1995] INSC 289 (12 May 1995)

Ray,
G.N. (J) Ray, G.N. (J) Faizan Uddin (J) G.N. Ray,J.

CITATION:
1995 AIR 1836 JT 1995 (6) 198 1995 SCALE (3)423

ACT:

HEAD NOTE:

WITH
Civil Appeal No. 2571 of 1991

In
both these appeals, the decision of the Bombay High Court (Aurangabad Bench) dated April 20, 1991 in Election Petition No. 7 of 1990 is under challenge. The
election petitioner Sri Bhaguji Nivrutii Satpute had questioned the election of
the appellant in C.A. No. 2227 of 1991 Dr. (Mrs.) Vimal Nandkishore Mundada to
the Maharashtra State Legislative Assembly from 201-Kaij (Scheduled caste) Constitutency
held in 1990 by filing a petition under the Representation of the People Act
1950 (hereinafter referred to as the Representation Act) before the Bombay High
Court inter alia on the grounds that Sri Ere Maruti Nivrutti was a Lingayat by
caste but he filed his nomination as Lingder, that Mangesh Pralhadrao Ranjankar
the appellant in Civil Appeal No. 2571 of 1991 was Kalal by caste but he filed
his nomination as Khatik, that appellant Dr. Vimal Mundada had although
embraced Jainism after her marriage, but filed her nomination as Chambhar but convassed
for vote as Jain (Hindu) and Dr. Vimal also convassed for votes on the ground
of religion and promoted communal hatred between two classed of citizen and
thereby committed corrupt practices under Section 123 of the Representation
Act. It may be stated here that the result of election to the Maharashtra Legislative Assembly from the said
201 Kaij Constituency (S.C) held on 27.2.1990 was declared on 1.3.1990 and the
appellant Dr. Vimal Mudada having secured 35957 votes was declared elected from
the said constituency. The election petitioner Sri Bhaguji secured 25736 votes
and the other appellant Sri Mangesh Ranjankar secured 15260 votes in the said
election.

Both
the appellants namely Dr. Vimal and Sri Mangesh filed their written statements
in the election petition before the High Court and disputed the correctness of
the allegations made against them by the election petitioner. The allegations
and counter allegations regarding other candidates in the said election
petition need not be referred to for the disposal of these appeals.

The
appellant Dr. Vimal Mundada in her written statement (Ext.18) denied the
allegations made against her regarding caste, community, promotion of hatred
between two classes of citizens and resorting to corrupt practice as alleged.
She also stated that Sri Ere Maruti Nivrutti belonged to Lingder community and
simply because he was described as Wani, he did not cease to be a Lingder. It
was also contended by Dr. Vimal that the election petitioner had never objected
to the caste certificate of Sri Ere Maruti.

She
also contended that Sri Mangesh Ranjankar belonged to Khatik community and the
caste certificate was issued in 1990 by a competent authority on the basis of
relevant documents. Hence the nominations of Sri Ere Maruti and Sri Mangesh as
scheduled caste candidates were correctly accepted by the returning officer.
The appellant Dr. Vimal also contended that the voters of Kaij constituency was
against Congress-I party and hence votes cast in favour of Sri Maruti or Sri Mangesh
would have never gone in favour of the election petitioner. It was also stated
that in the Parliamentary constituency of which Kaiz constituency was one of
the segments, the Congress I candidate got defeated by Janta Dal candidate.
That apart, the election petitioner lost his reputation as M.L.A. Although he
contested the previous election as an independent candidate and had criticised
the policies and achievements of Congress I party, he joined Congress I party
later on and he had also enemies within his own party and he had failed to
develop public relation.

Dr. Vimal
in her written statement specifically denied that she had posed herself as Marwari
Community woman and having married Sri Nand Kishore Mundada had presented
herself as Jain to the voters. She stated that by marriage she had not lost her
caste or religion more so when marriage was performed according to vedic rites.
She also stated that she had not published posters or banners nor did she subscribed
the news paper publication. Posters or banners were also not displayed with her
consent. She had appealed to the voters according to manifesto of B.J.P. and criticised
the policies of the Ruling Party or various aspects of national life.

Sri Mangesh
in his written statement also denied the allegations made against him in the
election petition. He stated that he obtained a caste certificate as 'Khatik'
and the said caste khatik was a recognised scheuled caste. Such caste
certificate was issued as far back as on 29.2.1990 and such certificate had
been correctly issued by the Executive Magistrate Kaij on the basis of relevant
documents. He also stated that although the caste of his brother was shown as 'kalal'
such description of caste of his brother was not made on the statement of their
father and the caste of the brother was wrongly mentioned. Sri Mangesh stated
that person belonging to khatik caste also engaged themselves in toddy business
on contract and they were denoted as 'kalals' although they factually belonged
to khatik caste. He also denied that the vote cast in his favour or in favour
of Ere Maruti would have gone in favour of the election petitioner.

He
also stated that the election petitioner had failed to keep contact with his
constituency and became unpopular.

In the
election petition No. 7 of 1990 before the Aurangabad Bench of the Bombay High
Court, several issues were framed for adjudication. Several issues including
issues No.5 and 9 related to the illegal acceptance of nomination papers of
both the appellants and of the said Ere maruti even though they did not belong
to scheduled caste thereby adversely affecting the voting prospect of election
petitioner and rendering the said election of 201 kaij s.c. constituency as
illegal and void. In respect of Dr. vimal Mundada issues No. 4,6,7,8 and 9 were
framed for deciding as to whether Dr. Mundadada and her election agents acted
in projecting her as member of Marwari Community for securing marwari votes of
about 7 to 8 thousands and whether they resorted to publication of posters
banners and news paper items as detailed in paragraphs 56 to 63 of the election
petition attacking the personal character of election petitioner and whether
they had also resorted to corrupt practice on account of delivering speeches by
Sm. jayantiben Mehta and Sri Promod Mahajan with the consent of Dr. Vimal in
the electoral constituency on the ground of religion and also with a view to
promote communal hatred as stated in paragraphs 64 to 70 of the election
petition.

By the
impugned judgment , a Single Bench of the Bombay High Court (Aurangabad Bench)
held inter alia that Sri Ere Maruti and Sri Mangesh Ranjankar who is the
appellant in Civil Appeal No. 2571 of 1991, were not the membrs of the
scheduled caste and acceptance of their nomination forms as contestant in the
said election in 201 kaiz constituency was illegal. The High Court however held
that the contest by the said Sri Ere Maruti and Sri Mangesh did not materially
affect the election result of Dr. Vimal. The High Court also held that the
declaration that Dr. Vimal got elected from the said 201 kaiz Constituency was
void. The High Court also answered the issue No. 7 relating to resorting of
corrupt practice adopted by Dr. Vimal and her supporter in making propaganda on
the score of religion and promoting communal hatred between two communities
through speeches delivered by Sm. Jayantiben Mehta and Sri Promod Mahajan in
the affirmative.

In her
appeal before this Court, Dr. Vimal Mundada has challenged the decision of the
High Court declaring his election from the 201 kaij constituency as illegal and
void and holding him guilty of corrupt practice under section 123 of the Representantion
Act for making propaganda to the voters on the score of religion and promoting
hatred between two communities through the speeches delivered with her consent
by Sm. Jayantiben Mehta and Sri Promod Mahajan. In the other appeal, Sri Mangesh
Rajankar has challenged the decision of the High Court that Sri Mangesh was not
a member of the scheduled caste and acceptance of his nomination paper for the
said reserved constituency for scheduled caste candidate in 201 kaij
constituency was illegal.

Coming
to the question of invalidity of the election of the appellant Dr. Vimal, we
may indicate that Issue No.3 as to whether election petitioner had proved that Dr.Vimal
ceased to be a Scheduled Caste candidate on her marriage with Sri Nand Kishore Mudanda
who is Jain, has been answered in the negative by the High Court. Similarly,
the High Court has also answered in the negative Issue No.4 as to whether the
election petitioner had proved that Dr. Mudanda got 35957 votes on account of
her propaganda that she was a Marwari by caste and such action on her part
amounted to corrupt practice. Although Issue No.5 has been answered in the
affirmative to the extent that nomination of Ere Maruti Nivrutti and Sri Mangesh
the appellant in the other appeal had been worongly accepted, the High Court
has specifically held that the result of wrong acceptantance of the nomination
of the said persion as members of scheduled Caste has not adversely affected
the election of the election petitioner. The High Court has also answered in
the negative Issue No.6 as to whether the election petitioner had proved that
Dr. Mudanda, her agents and other supporters with the consent of Dr. Mudanda
published posters, banners and newpaper items attacking the personal character
and conduct of the election petitioner as detailed in para 26 of the election
petition. The High Court has also answered in the negative Issue No.10 as to
whether the election in question was void on account of the improper acceptance
of the nominations of Dr.Mudanda, Sri Ere Maruti Nivrutti and Sri Mangesh and
scheduled castes. The High Court has, however, answered in the affirmative
Issue No.7 as to whether the election petitioner had proved that Smt.Jayantiben
mehta and Sri. Promod Mahajan with the consent of Dr.Mudanda, had delivered
speeches in the electoral constituencies on the ground of religion and also
with a view to promote communal hatred as stated in paras 64 to 70 of the
election petition.

it is
because of such decision on Issue No.7 that the High Court has declared that
the election of Dr. Mudanda was void and the election petitioner having secured
the next highest vote was entitled to be declared as elected.

It is,
therefore, necessary to consider whether the allegations of corrupt practice
alleged to have been resorted to by Dr. Mudanda because of her appeal to the
voters on the ground of religion through the speeches delivered with her
consent by Smt. Jayantiben Mehta and Sri Promod Mahajan in the electoral
constituencies for promoting communal hatred between two classes of citizens as
stated in paragraphs 74-77 of the election petition since found to be correct
by the High Court have been properly established.

Dr. Ghatate,
learned senior counsel appearing for Dr. Vimal has contended that the only
material on the basis of which the High court has found that the appellant Dr. Mudanda
had committed corrupt practice under Section 123 (3) and 123 (3A) of the
Representation Act is the report of speech said to have been delivered by Smt. Jayantiben
mehta on February 14, 1990 as published in Maratha Sathi on February 15, 1990.
The report of the speech said to have been delivered by Sri Promod Mahajan was
published in the daily Ambajogal Times on February 19, 1990. The evidence of Sri Sudarshan Rapatwar,
P.W.14, Reporter of maratha sathi and the evidence of Ishwar Chand Gupta
P.W.24, the Reporter of daily Ambajogai Times have been accepted by the High
Court. Dr. Ghatate has submitted that the High Court has not placed any
reliance on the evidence of the election petitioner and P.W.9, Sri Sambhajirao Jogand
and P.W.10 Sri Banshi N.Jagand. Dr.Ghatate has submitted that the High Court
has committed a grave error in holding that the speeches of Smt. Mehta as
reported in Maratha Sathi amount to corrupt practice under section 123 (3) and
123 (3A) of the Representation Act in view of the fact that (a) complete
verbatim speech was not produced to ascertain whether the extract publication
were out of context or not (b) because even the reporter Sri Rapatwar deposed
that the extract of the said speech of Smt. Mehta was in his language and not
in verbatim. Admittedly, Tipan that is the notes of the speech were made by
D.W.14 when the speech was delivered but such tipan had not been produced
before the Court so as to ascertain whether the publication was even in
accordance with the Tipan. Dr. Ghatate has also submitted that the maker of the
speech was not produced but the makers of the reports of the speeches who
admittedly reported some parts of the speeches in their own language were
examined. Dr. Ghatate has submitted that P.W.14 in his deposition stated
categorically that "there is political movement to create vote bank on the
basis of religion. Her approach to religion was from point of view of politics."
Dr. Ghatate has stated that the aforesaid statement by P.W.14 is his personal
assessment of the speech delivered by Smt. Mehta and because of his assessment
of the said speech of Smt. Mehta he published the report according to his own
idea of the speech and it is not at all unlikely that the extract of the speech
as published was out of context. Dr. Ghatate has also submitted that the
newspaper report appears to be factully wrong because Smt. Mehta could not have
said that BJP Shiv Sena alliance would from the Government of Madhya Pradesh, Himachal
pradesh, Gujrat and Rajasthan as reported in the publication because such
alliance of BJP and Shiv Sena was only confined to the state of Maharashtra.

Coming
to the speech of Sri Mahajan as reported in Ambajogai Times, Dr.Ghatate has
submitted that such speech was also not extracted in verbatim. The maker of the
speech was not examined and the reporter in his own language reported the
contents of the speech and even his notes on the basis of which the publication
was made about the said speech was also not produced. He has submitted that the
said reporter according to the subjective understanding of the effect of the
said speech published the said report and no reliance should be placed on such
report based on subjective assessment of the speech. Dr.Ghatae has also
submitted that P.W.24 , Ishwarchand Gupta admitted in his deposition that he
had recorded necessary items and not the whole speech and recorded those points
which according to him were relevant and important. Dr.Ghatate has submitted
that on the face of such submission it is quite evident that report also
suffered from subjective assessment of some parts of the speech which in the
opinion of the reporter were important and it was not unlikely that such report
had been made about portions of the speech taken out of their context thereby
creating a wrong impression. Dr. Ghatate in this connection has referred to a
decision of this Court in Samant N. Brijmohan Ramdass mehra and others (1976
(2) SCC 17 para (1979 (2) SCC 8 para 35-38). Dr. Ghatate has submitted that the
newspaper report or evidence of the reporter was only hearsay evidence and
Section 78 of the Evidence Act does not refer to the newspaper report.

In
this connection, Dr. Ghatate had relised on a decision of this Court in Laxmi Raj
SCC 499 paras 4 and 7) and Qamural Islam (Air 1994 SC 1733 para 44,46,47 and
48). Dr. Ghatate has submitted that is very difficult to interpret a part of
the speech with certainly that it is not reported out of context as has been
indicated by this court in mohammed koya's case (ibid). He has also submitted
that in any event, the notes of speech must be produced to show that the report
was according to the notes and not tainted. For this contention, Dr. Ghatate
has relied on the decision of this Court in Laxminarayan and another vs.
Returning officer and others (1974 (1) SCR 822 at 841-842). It has been
contended by Dr. Ghatate that even if a person is not a member of political
party, he may not necessarily be an independent withness. It is not unlikely
that such person may have his own political ideas close to the ideas of any
political party. Dr. Ghatate has submitted that it is quite apparent from the
deposition of Sri Rapatwar that he evalued the election speeches delivered by Smt.
Mehta from political angle according to his own understanding. Dr. Ghatate has
submitted that even on the basis of alleged speech delivered by Smt. Mehta and
Sri Mahajan as published, there was no occasion for the High Court to come to a
finding that such speeches, delivered with the consent of the appellant could
be held to be corrupt practice under section 123 (3) and 123 (3A) of the
Representation Act. Dr. Ghatate has submitted that the statement attributed to smt.
mehta that "the spark of 'Hindutwa' be lit in Maharashtra and should be
made to march upto Delhi" and reference to Hindutwa in two more places
must be held to be out of context because of the categorical admission of Sri Rapatwar
in his deposition - "I cannot say whether Hindutwa is a symbol of culture
and not necessarily a symbol of religion." Dr. Ghatate has submitted that
'Hindutwa" has been derived from the words 'Hindu' and 'tatwa' which means
Hindu logic or philosphy and such 'tatwa' is different from Hindu religion.
Referring to the passage about the alleged speech of Smt. Mehta regarding kashmir,
Dr. Ghatate has submitted that it is attributed that Smt. Mehta had said that kashmir
was indivisible part of India and we would not allow kashmir to
be seprated in any situation. Such statement does not offend any religion and
cannot be said to have caused even remotely hatred between two classes of
religion. The alleged speech of smt. mehta to the effect that present situation
in kashmir wherein the slogans in favour of Pakistan was raised and burning of
Indian national flag on August 14 had taken place and insult of Hindu Temples
in Anant Nag had been witnessed were consequences of wrong policies of Congress
I party cannot be said to be propaganoa on the score of any religion or
intended to cause any hatred between different classes of religion. Dr. Ghatate
has submitted that terrorism and anti national movements in the state of Jammu
and Kashmir are being questioned and analysed by all the political parties and
people in general and criticism of the state of affairs in Jammu and kashmir
cannot be held to be propaganda on the score of religion or a propaganda for
causing hatred between different communities and religious groups.

Coming
to the statement attributed to Sri Mahajan Dr.
Ghatate has submitted that Sri Mahajan according to the report had stated that
if his political party would be given an opportunity to hoist safron flag in Vidhan
Sabha, it would also be hoisted in Islamabad with in five years and the
internal rift in the Congress Party was going to benefit the BJP Shiv Sena
alliance and people would see safron flag hoisted in Vidhan Sabha. Dr. Ghatate
has submitted that safron flag is the colour of the flag of Shiv Sena which was
a partner of the said alliance. The flag of BJP is safron and green and the
flag of congress party is safron, white and green. Dr.Ghatate has submitted
that hoisting of safron flag in Vidhan sabha is the symbolic victory of the
said BJP-Shiv sena alliance. The undivided India was partitioned in 1947 and
the desire that again both the countries would become united through the
political efforts of BJP-shiv sena alliance within a period of five years
thereby making it possible to hoist the said safron flag in Islamabad does not
in any way appeal the voters on the ground of religion of such statement was nither
intended nor had brought into effect or likely to being into effect any hatred
between different communities and religions. Dr.Ghatate has submitted that theres
no evidence before the court which is clear, cogent, satisfactory, credible and
positive to establish the charge of corrupt practice. Since such charge is
quasi-criminal in nature and entails criminal nd entails crimmnal lability
apar5t from civil lability to loose the tight to contest election in ftture the
scrutinyt of theallegati0on of corrupt practice under section 123 (3) and 123
(3A) must be very critical and until and unless thre evidences being absolutely
credible and positive can stand the test of scrupulous scarutiny and would lead
to only oane irresistible conclusion and unimpechable rwsult that crrupt that
practice under Section 123 (3) and 123 (3A) was committed court should disist frsom
making any finding of corrupt practice. In this connection ,Dr.ghgatate has relised
on the decison of this court in mohan singh vs. bhaanwarlal and others (1964(5)
SCR 12 at 20), kultar singh 447). DR ghatate has submitted that there is no
room for inference or conjecture for making a findjng of corrupt practice. DR.Ghatate
has also submitted that hte evidence about the corrupt practice must be of such
unimpeachanble character that it will lead to onluy one conclusion that corrupt
pracatice has been committed and iff any other inference is also possible,
benefit must go to the returned candiate and courts shoulsd nbe slow to
interfere with the verdict of the electoratre. In this regard, Dr Ghatate has
relied on the decision of this court in Dault ram chauhan and others (1990 (2)
SCC 173 para 5).

DR. Ghatate
has also submitted that section 99 of the representation ACT is mandatory in
nature. He has submitted that even assuming that the appellant Dr. Vimal oave
consent ot hte speeches delivered by Smt. mehta and sri mahajan, the High court

Ghatate
has relied on the decision of this court in daulat chaturvedi and others (1990
(2) SCC 173 para 5) DR. Ghatate has also submitted tht section 99 of the Represaentation
Act is mandatory in nature. He has submitted that even consent to the speeches
delivered by smt mehta and sri mahajan, the High Court, in view of the section
98 read with section 99 of the Representation Act, cannot set aside the
election before naming the collaborators after giving the collaborators
opportunity to lead evidence and to cross- examine the withesses examined to
prove that they were not guilty of corrupt pracyice as alleged. Dr. Ghatate has
submitted that it has been held in D.P. at 28 and 29) that it is the duty of
the Court to name the person committing corrupt practice. If the Court fails,
the case has to be remanded. He has also rederred to another others (1974 (2)
SCC 660 at 685) where4in it has been held by this Court that when the Court
found that the returened candidate and his one of the supporters had committed
corrupt practice, it was under statutory duty to name all thoses who were
guilty of corrupt practices under Section 99 (a) (ii) after following the
prescribed procedure.

Dr.Ghatate
has submitted that if the Court comes to the conclusion that prima facie
corrupt practice had been committed by returned candidate with the aid of collaboratiors
it becomes bounden duty of the Court to name the collaborators after giving
them opportunity to disprove the allegations before setting aside the election
of the victorious candidate. Dr.Ghatate has alsc submitted that without giving
opportunity to the collaborators before naming them as guity of corrupt
practice along with the candidate in an election, on final finding about
corrupt Practice should be made - He has submitted that if without giving
opportunity to the collaborators, a firm finding about corrupt practice
resorted to by a candidate is made and on that basis the election is set aside,
and if for naming the collaborators subsequently steps are taken by the Court,
it is not unlikelt that a very anamolous situation may arise if the
collaborators on getting such opportunity satisfy the Court that they had not
committed, any corrupt practice. Dr.Ghatate has, therefore, submitted that in
the aforesaid facts and circumstanes, the finding of the High Court that Dr. Vimal
Mudandaq is guilty of corrupt practrice under Section 123 (3) and 123 (3a) of
the Representation Act is wholly unjstified and must be struck down. He has
submitted that Dr. Vimal was declared elected by a convincing marhgin over her
nearest rival namely the election Petitioner and the mandate of the election
should not have been frustrated by making thwe said finding in the absence of
cogent, specific, reliable and admissible evidence about resorting to corrupt
practice by Dr. Vimal on account of speeches delivered by Smt.Mehta and Sri Mahajan.

He
has, therefore, submitted that the appeal by Dr. Vimal should be allowed and
she should be declared to have been elected in the aforesaid election held in
1990 Mr.Poti, learned senior counsel appearing for the respondent No-1, namely
the election petitioner Sri Bhaguji has Submitted that though several grounds
were urged by the said election petitioner, the High Court accepted only one as
sufficent to set aside the election of Dr.Vimal on the ground that Section 123
(3) and 123 (3A) of the Representaion Act had been infrined. Such finding has
been made in view of the speeches made at election meetings of the appllant.
The first of such meeting was held on February 14, 1990 and the second was held on Fabruary
19, 1990. P.W. 14 has deposed about the meeting held on February 14, 1990 at Nagar Parishad ground and P.W.
24 has deposed about the meeting held at Municipal ground of February 18, 1990. The English translation of the
report of the speech by Smt.Mehta was published in Maratha daily Sathi on February 15, 1990 and the report of the speech of Sri
Mahajan was published on February
19, 1990 in Ambajogai
Times. Mr. Poti has also submiteed that speeches were not reported in full. The
reporter who made the reports had deposed that they had attended the respective
meeting and they had reported the gist of the speeches to the newspapers
publishing such reports. P.W. 14 is the reporter of Sathi and P.W. 24 is the
Editor of Ambajogai Times. Mr. Poti has submitted that the primary evidednce is
the testimony of the speeches and the testimony is supported by the nespaper
reports. It has been contended by Mr.Poti that the credibility of the evidence
will depend upon other facts and circumstance including the case attempted to be
suggested in the cross examination. It also depends upon the oral testimony of
the parties which may disclose what their cases are in regard to the eveidence
of the said two withnesses. Mr.Poti has submitted that no suggestion worth
consideration had been made in the cross examination of P.W. 14 and P.W. 24
which would sugges that Particular part of their reports or their depositions
were not true. Their reports or their depostions were not true.

There
is no serious despute about making of speeches by Smt. Mehta and sri Mahajan in
the presence of the appellant at the election meetings. The High Court has,
therefore, rightly held that the contents of the speech donot appear to be in
dispute. Even then, the election petitioner proved the contents of the speech
by examining the relevant withnesses.

Mr.Poti
has submitted that the election Petitioner has pleaded in his election petition
the facts relating to the meetings, the speeches made in the meetings and
constructive liability of the appellant Dr.Vimal for such speeches in clear and
specific terms. In reply to such averments made in paragraphs in her written
statement has not holiding of the meeting and participation of Smt.Mehta and
Sri Mahajan has been admitted. The presence of the appellant in such meeting
has also been proved by leading reliable and convincing evidence. There is no pssaion,
therefore, to pretend that such speection hed been delivered without her approveal.

Mr.Poti
has also submitted that there is no specific denial that each one of the
particular statements attributed to the said speakers was not made. He has
submitted that the only submission to the withesses was to the effect that such
speeches where on party lines. Mr. Poti has submitted that according to the
rules of pleadings, there must be specific denial in clear and unambigious
terms. If there is not specific denial of the averments made about the corrupt
practice as contained in paragraphs 62-70 of the election petition, any
att6empt of vague and evesive denial will be of no consequence acording to the
well established principles of pleadings to pleadings and the provisions of the
Code of Civil Procedure relating to Pleadings of the parties in a lis. Mr.Poti
has submitted that there is no doubt that the plea of corrupt practice requires
a high standard of proof considering the serious consequences involved in a
decision on the question. But facts relating to corrupt practice are to be
proved in an election petition in the same manner as facts in the othere case
are proved and there is not double standard od such proof. For this conterntion
he has relied on a decision of this Court in Ram at 481-482). Mr.Poti has
submitted that the learned counsel for the appellant has referred to various
decisions of this Court including the declsion mde in Gerge Fernadex's case
(ibid) relating to Madhu Limays's speech that new paper reports are not
evidence by themaselves. He has submitted that it is now well settled that
newspaper reports by themselves are not evidence but in the faors of the case.

such
decisions have no manner of application. Mr.Poti has submitted that publication
of a newspaper report only shows that such news itam has been published but
standing by itself it is of very little evidentiary value. Mr.Poti has
submitted that it is, therefore, necessary that the contents of the speech
should be proved by one of the known methods either by examining the reporter
or by proving the contemporaneopus record of the report or by such other
evidence as may be considered relevant or material.

Evidentiary
value of the nespaper reports will ultimately depend upon haon how and in what
manner the report is sought to be proved. Mr.P{oti has submitted that in the
instant case, the newspaper reports are not the primary evidence but the
secondary of P.W. 14 and P.W.24. Mr.Poti has submitted that even without
newspaper reports, speeches made by persons at a meeting could be proved by
those who listened to the speeches. It is not expected that a witness will be
in a position to recollect the speeches in full and reproduce the same verbatim
in Court particularly when the speeches are long. The gist of the points which
go home will be spoken by such withesses. The acceptance of such evidences will
depend upon various circumstances including the power to recall the speeches at
the distance of time when they are examined. In a case where it is undisputed
that the speeches were made and it is further proved that it was listened to by
gentlemen professionally trained to get at the gist of the speeches then unless
there is strong reason to disbelived their evidence or there is strong evidence
in rebuttal, the depositions about the gist of the speech would normally be
accepted. Mr.Poti has submitted that it is also an i mportant fact that the
said withnesses were able an important fact that the said withesses were able
to recall from the speeches because of the newspaper publications were based on
their own reports. Mr.Poti has also submitted that thw conduct of the appellant
Dr. Vimal is of considerable significance in the facts of the case.

Apart
from the vague pleadings and evasive denials in her written statement, the
appellant who was declared elected and whose election was challenged, did not
choose to enter the withess box and honestly place her version of the matter
before the court. Her fallure to examine herself should not place her at an
advantage over a party who enters the witness box and speaks about his case and
stands to cross examination. Mr.Poti has submitted that in the instant case the
appellant has not deposed that P.Ws. 14 and 24 did not attenc the respective
meetings or they had not stated what exactly was spoken at the meetings in
question. The appellant has also not made any statement by examining herself as
to what was the actual gist of the speech and whether the gist of the speech
reported was incorrect or quoted out of context. Even in the examination of
P.Ws.14 and 24, there is no suggestion to the said withesses that the
particular portions of the speech as reported were made in different from or
had not been made at all. Coming to the scope of appreciation of question of
finding of fact in an appeal before this Court arising from a decision rendered
by the High Cout in an election petition, Mr.Poti has submitted that it is well
setteld that though an appeal lies on a question of law and fact from a
decision rendereds in an election petition, this Court does not by convention
interfere with the finding of fact unlessa tere is a clear infirmity against
the judgment. for the said contention Mr.Poti referred to the decision of this
Court made in and others (1977 (1) SCR 573). It has also been held by others
(1974 (3) SCR 738) that unless there are convincing and clinching reasons to
take a different view, the finding arrived at by the High Court should not be
interfered with.

SCR
157) it has been held that no interference to the findings of fact by this
Court is called for unless there is grave error in the appreciation of the
facts of the case. In (1973 (1) SCC 95) it has been indicated by this Court
that this Court does not reapporeciate the case specially in the matter of
corrupt practice.

Coming
to the conclusion as to whether the gist of the speeches if correctly reported
justifies the finding of corrupt practice under Section 123 (3) and 123 (3A) of
the Representation Act, Mr.Poti has submitted that abefore assessing the impact
of the speeches, it is necessary to notice the object of these two sections as
well as certain Principles laid down by this Court in the matter of appection
of evidence. In Z.B.Bukhari's case (ibid) this Court has dealt with the object
of Section 123 (3) and 123 (3A) of the Representation Act relating to the
Question of disqualification on account of corrupt practice. This Court has
indicated that our political history makes it particularly necessary to ensure
that differences on the basis of religion, culture and creed do not deprive the
basis of religion, culture and creed do not deprive the people of their
rational thought and action. In the case reported in (1985 (2) SCR 159) Justice
Sabyasachi Mukherjee (as His Lordship then was) has indicated that :- Every
citizen must remember that while he has a fundamental right to speak he cannot
speak at an election meeting what long speaks at a political meeting. So he speaks
at a political meeting .So long as the political parties based on religion are
not banned in this country, it may be open to them to organanise themselves on
the basis of religion and avowdly promoting, what they consider true falth
namely their religious faith. But so long as their activities transgress the
provisions of Penal Law intended to preserve peace and communal harmony, their fundaamental
right of speech will not be protected. Section 123 (3A) carves out an area out
of this freedom and restricts such freedom during such election campatigh.

Section
123 (5) and 124 (5) as they stood at the relevant time were challenged as ultra
vires as ofrending the fundamental right of freedom of speech. The court said
"these laws do not stop a man from speaking. They merely prescribe
condition which must be obsereved if you want to enter Parliament (vide 1955
(1) SCR 608 para 5) .

Therefore,
a speaker speaking at an election meeting must alert himself that his soeeches
do not fall within the provisions of the concerned sections Mr. Poti has also
submitted that it is now well settled that the Court is required to consider
the effect of speech in the mind of the voter. It is not the statement here or
another statement there but the total effect of the speech in the mind of the
voter which calls for assessment to be considered before the Court. Mr.Poti has
submitted that it is evident from the speech delivered by Smt. Mehta that an apport
to the hindu voters to unite and vote in support of the appellant Dr.Mudanda
was made so that the sparks of Hinduism could be lit not only in Maharashtra
but there would be a march of such Hinduism upto the seat of power. In the
speech there was no appeal to vots only for the Bjp candidate or a candidate of
the BJP - Shiv sena alliance so that ideologies of the said political parties
are implemented. Smt,Mehta addressed the voters to the effect that the coters
as hindus would support the candidate of BJP so that success of the candidate
was ensured. Mr.Poti has submitted that the very approach that the hindus alone
shall be in power and election speeches made on that basis is bound to create
in the mind of hindu voters uncommitted so fdar that hindus should rule and for
that purpose they should vote for 'Hinduism'.

Mr.Poti
has submitted that the Representation Act provides for issue of notice for
taking action against the collaborators fdor giving them an opportunity of
being heard if the Court comes to the finding that xorrupt practice was
resorted to with the help of the collaborators. Mr. Poti has submitted that althought
it is the duty of the Court to name the collaborators by giving them an
opportunity of being heard, it cannot be contended that a party who has
committed corrupt practice has right to insist upon naming the collaborators.
He has submitted that commission of offence by the party to election petiton
has been found on cogent evidence and so far the as the said party is concerned
such finding is complete. He has also submitted that though the Court is
concerned for taking action against the collaborators of a corrupt practice the
decision rendered sgainst the appellant about resorting to corrupt practice
must be held to be final and the mather should not be kept pending for making a
finding against the collaborators.

Mr.Poti
has submitted that although the Court has the duty to name the collaborators of
corrupt oractice, since the court has not chose, tro name the collaborators in
the facts of the case, there is no compelling reason for this Court to
interfere with the decision made against the appellant by issuing notice
Section 99 of the Representation Act to the collaborators and to defer the decison
against the appellant until the collaborators are given opportunity of being
heard for being named as collaborators of corrupt practice. Mr.

Poti
has submitted that even if Court is of the view that collaborators, this Court
should make only a limited remand for the purpose of naming the collaborators
by following the procesures for such naming without disturbing the finding made
against the apoellant and his appeal before this Court should be dismissed.
After giving our anxious consideration to the facts and circumstances of the
case the submissions of the respective consel for the partiies it appears to us
that the appellan Dr.Vimal was deciared electre from 201 kaij Constituency by
securing highest votes. She had secured 9221 votes more than her nearest rival
the election Petioner Sri Satpute. The High Court has held that Sri Maruti Nivrutti
and Sri Mangesh were not members of scheduled caste and their nomination papers
ere wrongly accepted but the High Court has held that Sri Maruti Nivrutti and
Sri Mangesh were not memmbers of scheduled caste and their nomination papers
were wrongly accepted but the Hight Court. has also held that the contest by
them had not affected the polling prospect of the election petitioner. The
allegations of unfair practice adopted by the appellant Dr. Vimala and her
election agents and supporters in presenting herself as 'Marwari' for securing Marwari
votes and publishing banners , posters and also making newspaper publications
imputing the character of the election petitioner and attempting to himlate him
and lowereing him down in the estimate of voters in the constituency to gain
advantage in the election propspect hav not been accepted by the High Court and
issues on such contentions have been answered in the nagative. It is only on
the ground that Dr. Vimal had canvassed on the score of religion and had
attempted to spread hatred of one community against the other community thereby
adopting corrupt practice under Section 123 and 123 (3A) of the Representation
Act in view of speeches made by Smt.Mehta and Sri Mhajan with her consent that
the election petition was allowed by declaring that election of Dr. Vimal was
void and the election petitioner haveing secured next highest vote, should be
declared elected from the said said 201 Kaij Constituency. It apperars to us
that the said Smt. Mehta and Sri Mahajan addressed election meetings of Dr. Vimal
on two dates. Such election meetings were addressed by the said two speakers
for the benefit of Dr. Vimal in the election. We agree with the finding of the Hight Court that they addressed such meetings
with consent of Dr. Vimal. In our view there os force in the contention of Mr. Poti,
the learned Senior Counsel of the respondent No.1 that although reports
published in Maratha Sathi and Ambajogai Times about the contents of the
speeches of Smt. Mehta and Sri Mahajan by themselves are not admissible and they
may at best be secondary evidence but direct evidevne about the speeches by the
two reporeters p.w. 14 and P.W. 24 being peimary evidence about the contests of
the speeches delevered by the said tow speakers, such speeches amounted to
corrupt practice under Section 123 and 123 (3A) of the Representation Act.
There is also force in the contention of Mr.Poti that even if there was no
publication of the the speeches, the contents of such speeches could be proved
by examining the persons who had attended the meeting and heard the speakers.
Both P.W. 14 and 24 have stated that they attended the respective meeting and
noted the portions of the speech which according to their assessment appeared
to be important and relevant. It is true trhat both P.Ws. 14 and 24 are
reporters and it is quite likely that they have some expertise in noting down
the gist of the speeches or statements made by others for the purpose of
effectively reporting the contents of such speeches or statments for
publication in the newspapers. Both the said withesses have stated that the
speeches were long and the speeches could not be recored verbatim but gist of
portions of speeches as appeared to them important and relevant were noted by
them.

Such notings.
or 'tipans' therefore become very relevant because admittedly on the basis of notings
made at the sport, the reports were prepared by the said reporters and such
reports were published in the newspapers.

Unfortunately,
such notings or tipans have not been produced for inexplixable resons. such tipans
and notings the basis of the reports published in the newspapers, requires to
be considered for consistent with the notings made at the time of listening to
the speeches by the authours of the report.

In our
view, the Court should draw adverse inference against the authenticity of the
gist of the speeches since published in the newspapers for non production of
the said notings. It may be indicated here that the authors of the report did
not take down the speeches or even parts of such speeches in the language in
which they were expressed. Admittedly, the notes were prepared in the language
of the authors of the notes were prepared in the language of the authors of the
notes and such protion of the speeches were highlighted in the notes in their
own language as appeared to the authors of the reports important or relevant.
In such circumstances, even though the authors of the reports were reporters to
newspapers by profession, chances of misquoting or quoting some portions of
speech out of their context cannot be ruled out. The said reporters deposed
about thw contents of the speech but such deposed about the contents of the
speech but such depositions were made at a later date when chances of not fully
remembering the speeches in their proper context xannot be ruled out.

Reliance
to the depositions of the reporters was made by the High Cout because having
attended the meetings for the purpose of reporting they were likely to remember
the portions of speeches since noted by them. In our view, in such circumstsances,
it becomes all the more important to look to the notings made so as tro
ascertain wherther oral depositions are consistent with the notings so that
oral depositions may be held relible. In Manmohan Kalia's case (1984 (3) SCC
449), this Court has indicated as a note of caution that unless oral evidence
about the corrupt practice is satisfactory, the Court should the corrupt
practice is stisfactory, the Court should not rely on such evidence.

This
Court has held that :- "It is very difficult to prove charge of corrupt
practice merely on the face of oral evidence because in election case it is
very easy to get the help of interested withesses, but very dilfficult to prove
charges of corrupt practices." We, therefore, feel hesitant in finding the
appellant quilty of corrupt practice under Section 123 and 123 (3A) of the Represention
Act for want of relible and unimpeachable evidence. The finding of fact made by
the High Court in an election petition normally should not be tinkered with
unless there are goog reasons to take a different view. As it appears to us
that the evidence about the foundation of corrupt practice alleged against the
appellant Dr. Vimal, is not clinching and unimpeachable, we feel that the
finding of corrupt practice against the appellant having serious civil and
criminal import is not warranted in the facts and circumstances of the case. In
view of such finding, it is not necessary to consider, whether the speeches are
only related to 'Hindu Tatwa' or Hindu philosophy and not an appeal to only hindus
on the score of religion to vote in favour of the appellant but on the
contrary, such speeches were intended to whip out communal passion and raise
hatred between two classes od citizens. We may only indicate here that in earlier
decisions, this Court has sounded a note of caution that finding about corrupt
practice should be made on the basis of clear, cogent and reliable evidence
because such finding entails serious consequences both civil and criminal
against the persons concerned. We may also indicate here that in order to
maintain national integrity and amity amongst the citiziens of the country and
to maintain the secular character of the pluralistic society to which we belong
section 123 and 123 (3A) of the Representation Act have been incorporated. For
maintaining purity in the election process and for maintaining peace and
harmony in the social fabric, it becomes essentially necessary not only to
indict the party to an election guilty of corrupt practice but to name the collaborators
of such corrupt practice if there be any. Precisely, for the said reson,
Provisions have been made in the Representation Act to give notices to the
collaborators on the basis of the prima facie finding against them so that
after giving them an opportunty of being heard a firm finding against the
collaborators can be made and such collaborators are named. In our view, Dr.

Ghatate
has very justly contended that the Court has not only a duty to name the
collaborators by following the appropriate procedures but a final decision of
corrupt practice should not be made without giving collaborators an opportunity
of veing heard if corrup practice by a party to the election has been resorted
to not by his own act directly but by acts of the collaborators. It will indeed
be an anamolous position if on the basis of misdeeds of the collaborators a
finding of corrupt practice is finally made against a party to the election but
later on the Court after hearing the collaborators for the purpose of naming
them comes to a different finding namely the collaborators had not done
anything on the basis of which a finfing of corrupt practice should be made. We
woulfd have inclined to remit the case bak to the Hight Court for making the
finding about corrupt paractice only after following the appropriate procedures
of giving opportunty to the alleged collaborators of being heard. But as we
have indicated that even prima facie such finding of corrupt practice cannot be
made for want of convincing and unimpeachable evidence, the question of
remitting the matter to High Court does not arise. For the aforesaid reasons, We
allow the appeal of Dr. Vimal Mudanda being Civil Appeal No.1117 of 1991 and
set aside the judgmwnt so far Dr. Mudanda is concerned.

In the
other appeal i.e. Civil Appeal No.2571 (NCE) of 1991 the appellant Sri Mangesh
who was respondent No.17 in the election petition before the Aurangabad Banch
of Bombay High Court has Challenged the finding of the High Court so far as his
caste is concerned. The High Court has that Sri Mangesh was 'Kalal' by caste
which is not Scheduled Caste in the State of Maharashtra. The High Court has
referred to in great detail in paragraphs 71 to to 91 of the impugened judgment
evidences documentary and oral adduced by both the parties in support of the
rival contention about the caste of Sri Mangesh. The High Court has noted that
the caste certificate was not issued to Sri Mangesh in a proper manner after
adverting to relevant documents. The revenue records and school leaving certificate
are required to be looked into for deciding the caste of the person concerned.
It has been indicated by the High Court that the grand father of Sri Mangesh
had affiremed affidavit declaring him as 'Kala' by caste and not 'hatik' as
claimed by Sri Mangesh. Such affidavit had been affirmed long back. In the
school leaving certificate of the brother of Sri Mangesh, such brother's caste
has been mentioned as 'Kalal'. Considering revenue records and other materials
produced before the High Court, the High Court has come to the finding that the
caste certificate issued in favour of Sri mangesh does not depict the caste of
Sri Mangesh correctly. After elaborate analysis of the evidences oral and
documentary, the High Court has held that Sri Mangesh is 'Kala' by caste and
not 'Khatik' and 'Kala' is not a Scheduled Caste in the State of Maharashtra,
We have been taken through the said paragraphs 71 to 91 of the judgment and
after considering the same, we do not find any reason to take a contrary view.
The consel for the appellant has very strenuousl contended that the finding of
the High Court that Sri Mangesh foes not belong to scheduled caste not only
affects his chance to contest in the constituency reserved for scheduled caste
but it also affects him prejudicially in various other matters. He is going to
be deprived of all the benefits available to a member of scheduled caste. As it
appears to us that the High Court on the basis of materials placed before it
has come to a proper conclusion that Sri Mangesh could not be held to be a 'Khatik'
by caste but 'Kalal' by caste, we do not intend to interfere with such finding.
It will, however, be open to Sri Mangesh to have his caste redetermined on the
basis of further materials relevant for such determination of caste.